ID: GF000494

Ms. Erika Z. Jones
Mayer, Brown, Rowe & Maw LLP
1909 K Street, NW
Washington, DC 20006-1101

Dear Ms. Jones:

This responds to your January 16, 2004, letter regarding applicability of 49 CFR 571.201, S6.3(b) to targets located near third row folding bench seats. Specifically, you ask whether targets located within 600 mm of a third row folding bench seat, which is not a split row bench seat, are excluded from the requirements of S6.1 and S6.2 of the Federal Motor Vehicle Safety Standard (FMVSS) No. 201, when the third row bench seat is in a stowed position. NHTSA will not test these target points for compliance if the seat, when stowed, is not likely to be used as a seating position while the vehicle is in motion.

S6.3(b) excludes targets located rearward of a vertical plane 600 mm behind the seating reference point of the rearmost designated seating from the requirements of S6.1 and S6.2 of FMVSS No. 201. In your letter, you describe a vehicle featuring three rows of seats. The third row bench seat stows to in order to create an expanded cargo area. The third row seat has a latch system attached to the D-pillar that secures the seat back in its upright position. When the third row bench seat is stowed, the latch remains exposed. The latch is located within 600 mm of the seating reference point of the third row bench seat, but beyond 600 mm from the seating reference point of the second row seat. You ask if the second row seating position would be considered the rearmost designated seating position when the third row seat is stowed.

The term "designated seating position" is defined at 49 CFR 571.3 as "any plain view location capable of accommodating a person at least as large as a 5th percentile adult female, if the overall seat configuration and design is such that the position is likely to be used as a seating position while the vehicle is in motion, except for auxiliary seating accommodations such as temporary or folding jump seats." The third row folding bench seat described in your letter is not an auxiliary seating accommodation because it is not a temporary or a jump seat but a permanent seat available for use by occupants.

When in the upright position, the third row seat described in your letter constitutes the rearmost designated seating position for the purpose of S6.1 and S6.2. In a 1993 interpretation letter to Michael Love of Porsche, the agency stated that a folding rear seat described in that letter would be considered a designated seating position at all times. We noted that the examples provided by Porsche were not precise enough for us to make a more specific determination as to whether the vehicle in question must comply with all requirements related to a specific designated seating position. In the present case, the third row seat, when in its stowed position, is unlikely to be used for anything other than cargo carrying, since it appears that all available leg room would be occupied by the folded seat back.

Accordingly, NHTSA would not test for compliance with S6.1 and S6.2 at the target point in question when the third row seat is in its stowed position. However, compliance with the requirements of S6.1 and S6.2 would be verified when the third row bench seat is in its upright position intended for occupant use.

I hope you find this information helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:201
d.5/4/04

ID: nht76-5.39

DATE: 10/28/76

FROM: AUTHOR UNAVAILABLE; John Womack; NHTSA

TO: Jack B. Schiff

TITLE: FMVSR INTERPRETATION

TEXT: This is to acknowledge receipt of your letter of October 8, 1976, concerning odometer statements issued by auction companies.

As we have indicated in previous letters to you, the statement "no mileage guarantee" does not conform to section 580.6 of title 49, Code of Federal Regulations, the disclosure form. Therefore, any transferor of a motor vehicle who gives such a statement to his buyer is in violation of the Motor Vehicle Information and Cost Savings Act. This applies equally to all transferors of ownership in motor vehicles, including individuals, dealers, distributors, and auction companies.

At first glance, the odometer disclosure statement issued by Floyd Hauhe Auto Auction appears to be in violation of the Federal law because it clearly states that mileage is not guaranteed. However, upon closer inspection, such is not necessarily the case. You will note that their statement says "warranty and mileage are not guaranteed to be good or correct on any car purchased thru this auction." (Emphasis added) Additionally, it says that "this sale is solely a transaction between the buying and selling dealer." This language changes the facts significantly. The vehicle appears not to be as you state in your letter, purchased "from" the auction company. It was instead purchased through the auction, and Floyd Hauhe was not, apparently, a tranferor of ownership in a motor vehicle as defined in Part 580.3 of title 49.

The responsibilities of an auctioneer with regard to the Federal odometer law vary depending upon the capacity in which he is operating. If the auctioneer is conducting business with both the buyer and seller present, the seller is required to disclose the mileage to the buyer at the time of sale and the auctioneer is essentially a by-stander as far as the Federal requirements are concerned. If the auctioneer buys a vehicle, then auctions it, he becomes the transferor and must disclose the mileage. In this case, the auctioneer would not be permitted to state that mileage was not guaranteed. If the auctioneer is acting as consignee for a seller who is not present and who may have delivered the vehicle from hundreds of miles away, he will have to obtain some assurance from the seller concerning the mileage on the vehicle at the time it left the owner's premises before a disclosure is made. As owner, the seller is ultimately responsible for the disclosure statement, but he may have to rely on his driver or the auctioneer to make out the statement at the auction.

It is unclear from the Floyd Hauhe Auto Auction statement as to the capacity in which they are operating. The language on the face of the statement appears to indicate that they are not tranferors and thus are not responsible for issuing odometer statements. If however, they are requested to do so absent sellers, their form is in violation of the Act because it does not provide the transferor's name, address or signature, and because it states that mileage is not guaranteed.

I hope that this information clarifies your questions. If you have any further questions, please do not hesitate to write.

ID: nht76-5.4

DATE: 07/23/76

FROM: HERLIHY FOR S.P. WOOD -- NHTSA

TO: Celanese Fibers Marketing Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your March 19, 1976, recommendation that paragraph S5.1(e) of Standard No. 209, Seat Belt Assemblies, be amended to clarify that the temperature specified in the "resistance to light" test procedure is intended to be "black panel" temperature rather than "bare bulb" temperature.

The procedures outlined in Standard No. 209 for the "resistance to light" test were adopted from the Bureau Standard's procedures for testing seat belts. The standard was developed by an industry and government group, which included Celanese Fibers, as a simplification and improvement of the A.S.T.M. Designation E42-64 procedure. The "resistance to light" test was established to test nylon webbing, which was the standard material used in seat belt webbing at that time.

We recognize, however, that the industry now uses decron and polyester materials in seat belt webbing, and that the Standard 209 test procedure developed to test nylon does not give meaningful results for these new materials. Therefore, the National Highway Traffic Safety Administration does not enforce the requirements of paragraph S5.1(e) of Standard No. 209 in the case of seat belt webbing made of dacrons and polyesters, and will not until appropriate testing procedures can be developed and incorporated in the standard for these new materials.

Procedures for testing systems containing materials other than nylon are under development and we plan to initiate rulemaking to incorporate these procedures into standard 209. You should understand that our commencement of a rulemaking proceeding does not signify that the rule in question will be issued. A decision as to the issuance of the rule is made on the basis of all available information developed in the course of the rulemaking proceeding, in accordance with statutory criteria.

We would appreciate any data you may be able to provide regarding colorfastness tests for fabrics other than nylon.

SINCERELY,

ID: nht76-5.40

DATE: 03/03/76

FROM: AUTHOR UNAVAILABLE; John Womack; NHTSA

TO: Joseph S. Russo

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter of January 29, 1976, requesting an opinion as to whether documents enclosed with your correspondence would satisfy the requirements of the disclosure provisions contained in Section 408 of the Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513) and 49 CFR Part 580.

It appears that both documents contain all of the information necessary to comply with the odometer disclosure requirements.

SINCERELY,

LAW OFFICE OF JOSEPH S. RUSSO

January 29, 1976

Department of Transportation

Enclosed herewith are documents we propose to supply our clients for their use in transferring titles to motor vehicles.

Please advise this office as to whether or not these documents are in compliance with the Motor Vehicle Information and Cost Saving Act Public Law 92-513 86 Stat. 947 (15 USC 1988 and 49 CFR 580.1).

This additional information on the forms is required by LSA-R.S. 32:726.1 of the Statutes of Louisiana.

Joseph S. Russo

STATE OF LOUISIANA

PARISH OF JEFFERSON

BEFORE ME, the undersigned authority, personally came and appeared who, after being duly sworn, deposed that he donates the automobile described below to to whom he has already transferred possession thereof. The approximate value of this vehicle is .

Odometer Mileage Statement (Federal Law Requirement)

(Federal regulations require you to state the odometer mileage upon transfer of ownership. An inaccurate statement may make you liable for damages to your transferee, pursuant to Section 409(a) of the Motor Vehicle Information and Cost Savings Act of 1972, Public Law 92-513.)

I, , state that the odometer mileage indicated on the vehicle described below is miles.

(Check the following statement, if applicable:)

[] I further state that the actual mileage differs from the odometer reading for reasons other than odometer calibration error and that the actual mileage is unknown. MAKE BODY TYPE YEAR MODEL VEHICLE IDENTIFICATION NUMBER LAST PLATE NUMBER

Transferor's address:

Transferor's signature:

Date of this statement:

Odometer Mileage Statement (State Law Requirement)

To the best knowledge and belief of transferor, the odometer mileage given above is the true mileage, unless otherwise indicated above. If otherwise indicated above, the true mileage to transferor's best knowledge and belief is .

Transferor

THUS DONE in my office on the day of 19 , in the presence of the undersigned competent witnesses and me, Notary.

EXECUTED IN DUPLICATE. WITNESSES:

NOTRAY PUBLIC

BILL OF SALE

I, , do hereby sell and convey unto the following described automobile for the price of :

Odometer Mileage Statement (Federal Law Requirement)

(Federal regulations require you to state the odometer mileage upon transfer of ownership. An inaccurate statement may make you liable for damages to your transferee, pursuant to Section 409(a) of the Motor Vehicle Information and Cost Savings Act of 1972, Public Law 92-513.)

I, , state that the odometer mileage indicated on the vehicle described below is miles.

(Check the following statement, if applicable:)

[] I further state that the actual mileage differs from the odometer reading for reasons than odometer calibration error and that the actual mileage is unknown. MAKE BODY TYPE YEAR MODEL VEHICLE IDENTIFICATION NUMBER LAST PLATE NUMBER

Transferor's address: Transferor's signature:

Date of this statement:

Transferee's signature:

Odometer Mileage Statement (State Law Requirement)

To the best knowledge and belief of transferor, the odometer mileage given above is the true mileage, unless otherwise indicated above. If otherwise indicated above, the true mileage to transferor's best knowledge and belief is .

Transferor

Sworn to and subscribed before me this day of .

NOTARY PUBLIC

ID: nht76-5.41

DATE: 04/02/76

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Mark Andrews; House of Representatives

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter of March 19, 1976, requesting our comments on an inquiry from one of your constituents, Mr. Pat Milloy, concerning the proper format for disclosure of odometer mileage information in compliance with the Federal odometer disclosure regulation (49 CFR Part 580).

Mr. Milloy states in his letter that a Colorado dealer, ordering odometer disclosure forms, has indicated that the required Federal format has been changed. The format referred to by the Colorado dealer differs from the Federal form which Mr. Milloy and his client, Globe-Gazette Printing Company, believe to still be in force.

The Federal odometer disclosure regulation has not been amended since its initial enactment. The format requested by the Colorado dealer (form "B" enclosed in Mr. Milloy's letter) fails to comply with the current Federal odometer disclosure requirements in several respects. The statement referring to the mileage indicated on the odometer at the time of the vehicle's transfer must be phrased to indicate that the disclosure document was executed at the time of the vehicle's transfer, not at some later time. In addition, the statement must be written in such a manner that it is clear it is to be completed by the transferor alone. To satisfy these criteria the statement should read:

"I, , state that the odometer mileage indicated on the vehicle described above, at the time of transfer to is as follows:"

The portion of the document provided for disclosure of the odometer mileage and a statement as to its accuracy is also deficient. Instructions are necessary on this part of the form to ensure that it is completed in a consistent manner by all persons. The number of miles indicated on the odometer at the time of the vehicle's transfer need not appear a second time if the form includes the statement recommended above. If the seller wishes, he may indicate on the form that the actual mileage is over 100,000 miles. In addition, the statement concerning the accuracy of the vehicle's reflected mileage must be more complete than the one included in form "B." Completion of the disclosure document in accordance with these directions may be accomplished as follows:

"(Where applicable, complete line 1 and/or check line 2:)

1. total cumulative miles (if over 100,000).

2. [] I further state that the actual mileage differs from the odometer reading for reasons other than odometer calibration error and that the actual mileage is unknown."

The odometer regulation's provisions do not require that the transferee sign the statement nor do they make it necessary to have the document notarized. In addition, the date on which the transferor purchased the vehicle need not be provided.

As long as the requirements of the disclosure regulation are satisfied, there is no limitation on including additional information in the disclosure statement. Thus, modifying the statement "B" format to meet the Federal requirements in the manner described above would be sufficient for compliance by the Colorado dealer. The additional information appearing in form "B" may be retained without affecting compliance.

I hope this letter answers Mr. Milloy's questions concerning the Federal odometer disclosure requirements. If I can be of any further assistance, please do not hesitate to let me know.

SINCERELY,

Congress of the United States House of Representatives

March 19, 1976

Mr. Frank Berndt Acting Chief Counsel National Highway Traffic Safety Administration

Mr. Jacob, of my staff, informs me that he spoke to you about the matter detailed in the attached (Illegible Word), and that you agreed to respond to it.

I appreciate your cooperation in our effort to clarify what Federal Odometer Disclosure Form should be printed.

I look forward to your response.

MARK ANDREWS Congressman for North Dakota

ID: nht76-5.42

DATE: 06/02/76

FROM: AUTHOR UNAVAILABLE; S. P. Wood; NHTSA

TO: General Motors Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of March 8, 1976, asking for an amendment of S4.1.1.21 of Motor Vehicle Safety Standard No. 108 to allow a plus tolerance of 7.5 percent on maximum wattage requirements for Type 1A and 2A headlamps.

I enclose a copy of an interpretation furnished the General Electric Company which states that such a tolerance is allowed. However, to clarify our intent we plan to amend Standard No. 108 in the near future in the manner that you suggest.

ID: nht76-5.43

DATE: 03/19/76

FROM: AUTHOR UNAVAILABLE; R. L. Carter; NHTSA

TO: F. A. McNiel

TITLE: FMVSS INTERPRETATION

TEXT: On February 12, 1976, this agency denied your petition to amend S4.5.4 of Motor Vehicle Safety Standard No. 108 to read:

"The stoplamps on each vehicle shall be activated upon application of the service brakes, or by other beneficial means which will not impair the lighting system or the mechanical functioning of the vehicle."

You have now re-petitioned us on February 16, 1976, to amend S4.5.4 to read:

"The stoplamps on each vehicle shall be activated upon application of the service brakes. This action may be supplemented by other beneficial means which will improve the performance of the stoplamps without impairing the lighting system or the mechanical functioning of the vehicle."

This petition is unnecessary, because as you have now worded your suggested amendment it essentially reflects the present requirements of the standard. We do not view S4.5.4 as prohibiting a means of stoplamp activation supplemental to activation by application of the service brakes.

Any supplemental lighting device, however, is subject to the general prohibition of S4.1.3 against installation of motor vehicle equipment that impairs the effectiveness of lighting equipment required by Standard No. 108. For example, a positioning device that activates the stoplamps whenever the accelerator pedal is released would impair the effectiveness of the stoplamps by providing an ambiguous signal, as release of the accelerator does not always signify that the vehicle operator intends to brake.

You also questioned whether NHTSA desires to see improvements in motor vehicle stoplamp systems. Docket No. 74-5 represented a tenative effort to provide better systems on an optional basis, but on the basis of comments to the docket and our research contracts, we are re-evaluating the entire subject. Your denial must also be considered in this context, and at the present time radical changes in rear lighting are simply premature.

The remainder of your letter was also of interest. Dr. Haddon remarked that performance standards afford the private sector optimum flexibility in designing to meet the Federal standards. His comment reflected a statutory mandate which this agency continues to adhere to in its rulemaking actions. However, as I wrote you on February 12, any performance standard is design restrictive to some extent, with the restrictions ideally only as narrow as reasonably necessary to achieve the desired safety performance. In some areas (e.g. the occupant protection provisions for vehicle interiors in impacts, Standard No. 201) a great deal of design freedom is afforded, while others (e.g. the headlighting requirements of Standard No. 108) may be quite restrictive because safety-related factors such as availability of replacements, uniformity of color and location, and detection of function are more important than design freedom.

Sincerely,

ATTACH.

F. A. McNeil 611 Bouldin Avenue Austin, Texas 78704

FEBRUARY 16, 1976

U. S. Department of Transportation National Highway Traffic Safety Administration

Appeal of Petition Denial - Re: N40-30

Gentlemen:

In reply to your letter of February 12, 1976 wherein you deny my petition for the correction of subsection S4.5.4 and S4.6 (b) as set forth by the existing Federal Motor Vehicle Safety Standard No. 108, I offer the following comments.

In relation to S4.5.4, I agree with your statement that a signal to other drivers that the service brakes are being applied is precisely the performance being sought in S4.5.4. The possibility of an improvement over this 'one shot' stoplamp warning system is what I am endeavoring to get incorporated into Federal Motor Vehicle Safety Standard No. 108, subsection S4.5.4.

As for subsection S4.6 (b) I agree that from the standpoint of traffic safety there is no need for the amendment that I have proposed. My proposal was based primarily on economy. If for any conceivable reason the flashing of the headlamps and the side marker lamps for signaling purposes could enhance traffic safety, cutting a flasher unit directly into the existing lighting circuit would be much less costly than the installation of the additional wiring and switching means that would be required to isolate the headlamps and the side marker lamps from the conventional lighting circuit.

My suggested amendment to S4.5.4 stated - "The stoplamps on each vehicle shall be activated upon application of the service brakes, or by other beneficial means which will not impair the lighting system or the mechanical functioning of the vehicle." - I regret that my choice of wording could be construed to indicate any intent that activation of the stoplamps upon application of the service brakes could be deleted under any circumstances. Such an act would very definitely impair the vehicle's lighting system, and so would therefore be unacceptable under such revised standard. - However, to make my proposal crystal clear, I am rephrasing my petition to amend FMVSS No. 108, subsection S4.5.4 to read as follows --

"The stoplamps on each vehicle shall be activated upon application of the service brakes. This action may be supplemented by other beneficial means which will improve the performance of the stoplamps without impairing the lighting system or the mechanical functioning of the vehicle."

Such an amendment would provide a standard against which any means that would improve the performance of a vehicle's stoplamp warning system could be tested -- such as a means to signal other drivers that the brakes are going to be applied (prior to the time of the actual application of the brakes) in the event that a 'panic' or other sudden stop is going to be made.

The reason cited for denying my petition for amendment of S4.5.4 was - "Since the requirement is limited to the desired safety performance, we find it valid" - Does this statement mean - as it implies - that the NHTSA has no desire to see any improvement in a motor vehicle's antiquated stop warning system? - I find this to be extremely odd in view of the fact that your department previously informed me that "rear end collisions account for 10 per cent of the fatal motor vehicle accidents and 49 per cent of all motor motor vehicle accidents". - As for validity, the reasons for your denial of my petition are certainly not valid in relation to the statements made by Director Haddon December 14, 1967.

Again, I strongly urge that the National Highway Traffic Safety Administration approve my revised petition for the amendment of Federal Motor Vehicle Safety Standard No.108, subsection S4.5.4 as set forth above.

Respectfully,

Fred A. McNiel Traffic Safety Advocate

copy: Hon. J. J. Pickle

ID: nht76-5.44

DATE: 01/13/76

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: GENERAL Motors Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of December 2, 1975, asking this agency's opinion as to whether Federal Motor Vehicle Safety Standard No. 115, Vehicle Identification Number, would preempt any differing State law or regulation specifying the content of a vehicle identification number. You asked the question in the context of a Vehicle Equipment Safety Commission action recommending such a regulation to the States.

Standard No. 115 requires a vehicle identification that is unique to a manufacturer during any ten-year period. It does not specify the length or the content of the number. The question, therefore, becomes whether the Federal safety standard on vehicle identification numbers was intended generally to cover all aspects to those numbers, and preempt any differing State rules, analogously to the situation in which Standard 108 was held to be preemptive in Motorcycle Industry Council v. Younger, No. CIV S74-126 (E. D. Cal. 1974). The guiding rule, as set forth by the U. S. Supreme Court in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 141-142 (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines as set forth in cases such as Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), and Chrysler v. Tofany, 419 F.2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that the safety standard on vehicle identification numbers, No. 115, is intended to cover all aspects of vehicle identification numbering relative to the vehicles to which it applies, and that any aspects for which there are no specific requirements were intended by this agency to be left to the discretion of the manufacturers. State regulations differing from the Federal standard on this subject are found to "impair the federal superintendence of the field," within the meaning of the Florida Lime doctrine, and any such State regulation would be preempted under section 103(d), 15 U.S.C. 1392(d).

SINCERELY,

ATTACH.

November 14, 1975

James B. Gregory -- Administrator, U. S. Department of Transportation, National Highway Traffic Safety Administration DEAR DR. GREGORY:

Re: Preemption and FMVSS 115

The Vehicle Equipment Safety Commission (VESC) will hold a hearing on December 11, 1975 in Kissimmee, Florida preliminary to adoption of a regulation entitled "Minimum requirements for the design of a vehicle identification number system for passenger cars". The regulation, if adopted at the VESC meeting, would apply to passenger cars registered in States that in turn adopt the VESC regulation.

Due to the relationship between the VESC and its member States [discussed in detail below], the December 11 hearing raises the real concern that one or more States will adopt the proposed VESC regulation as a part of their vehicle code within a few months thereafter. Thus, the VESC regulation can be expected to very quickly become part of the vehicle law in several states.

The proposed VESC regulation is not identical to the performance requirements of FMVSS 115, "Vehicle Identification Number". The difference will be discussed in detail below.

Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 states in part:

Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance or item of equipment which is not identical to the Federal standard.

General Motors is of the opinion that the National Highway Traffic Safety Administration (NHTSA) intended FMVSS 115, "Vehicle Identification Number", to be a comprehensive, uniform and exclusive safety standard applicable" to all aspects of vehicle identification numbering; that generally those State vehicle identification numbering requirements which apply to passenger cars and which are not identical to FMVSS 115 are preempted by FMVSS 115 under

authority of Section 103(d) as quoted above; and that specifically those provisions dealing with the content of the digits and letters used in the vehicle identification number are preempted by FMVSS 115 under authority of Section 103(d). GM anticipates that NHTSA holds the same opinion in the matter as GM does and requests that NHTSA express its opinion on this important subject in response to this letter and to the VESC prior to the December 11 meeting.

VESC AND ITS MEMBER STATES

The Beamer Resolution, Public Law 85-684, August 20, 1958, gave Congressional assent to agreements or compacts among States for "cooperative effort and mutual assistance in the establishment and carrying out of traffic safety programs, including but not limited to, the enactment of uniform traffic laws . . . and . . . for the establishment of such agencies, joint or otherwise, as they deem desirable for the establishment and carrying out of such traffic safety programs". Attached is a copy of the Beamer Resolution.

The Vehicle Equipment Safety Compact was subsequently developed as the mechanism by which States could compact with one another for the purposes stated in Public Law 85-684. Attached is a copy of the Compact.

Article III of the Compact creates the VESC as the agency of the member States.

As stated in Article I, subsection (b)(1), of the Compact, one purpose of the Compact is to "promote uniformity in regulation of and standards for equipment". Article V of the Compact authorizes the VESC after hearings to adopt "rules, regulations or codes embodying performance requirements or restrictions for any item or items of equipment covered in the report [indicating the need for regulation]". (This provision appears in the Compact notwithstanding the fact that the Beamer Resolution relegates compact activities in the field of "safe automobile . . . design" to research only.) Under Article V of the Compact, once a regulation has been adopted by the VESC, each party State must duly consider it for adoption.

Sections (e), (f), and (g) of Article V of the Compact provide that member States may adopt or reject VESC regulations by administrative or legislative action as appropriate under individual State constitutions and statutes.

Forty-two States and the District of Columbia are now members of the Vehicle Equipment Safety Compact. The eight states that are not members are Alabama, Alaska, Minnesota, Mississippi, Nebraska, Nevada, South Carolina, and West Virginia.

In thirty of the member States, a VESC regulation becomes a mandatory State equipment requirement only after the individual State's Legislature enacts it into law.

A VESC regulation, however, can be adopted by administrative action alone in the following twelve States: Connecticut, Florida, Iowa, Maryland (deemed approved in absence of legislative disapproval), New Hampshire, New Jersey, Oklahoma, Pennsylvania, Tennessee, Texas, Vermont and Virginia.

Under the procedure followed by VESC, the December 11 hearing may be the final administrative step before adoption by VESC of this regulation. Indeed, the first line of the attached Notice of Public Hearing states that the hearing is preliminary "to final adoption" of the regulation. Following VESC adoption, as many as twelve States can adopt the VESC regulation administratively without legislative action, whereupon the regulation acquires the force of law immediately in those States. In those twelve States, six months is the maximum time within which to act but no minimum time is specified.

The twelve States not only may adopt the VESC regulation but are required by statute to do so unless "the public safety" requires otherwise. Article V, section (g) of the Compact, which has been incorporated in the statutes of the member States, so provides. If only "public safety" is relevant in the State hearing prior to adoption of the regulation by an individual State, an objection that the regulation is preempted by FMVSS 115 under authority of Section 103(d) might not be heeded.

Since its establishment, the VESC had adopted a number of regulations. Among them are Regulation V-1, New Tires; Regulation (Illegible Word) Minimum Requirements For Motor Vehicle Connecting Devices and Towing Methods; Regulation VESC-6, Minimum Requirements For School Bus Construction and Equipment; and VESC-9, Safe Operating Condition of Truck and Bus Type Tires.

VESC can adopt the regulation soon after the December 11 hearing and thereby trigger simultaneous action in forty-two States and the District of Columbia to adopt the regulation as law. If the NHTSA does not express its opinion on preemption at the VESC hearing or prior to adoption by VESC of the regulation, it will be necessary for each of the forty-three member jurisidictions to consider the merits of the preemption argument individually with possibly differing results.

Thus, urgent need exists for the NHTSA to express its position on preemption at or soon after the December 11 VESC hearing.

DIFFERENCES IN CONTENT BETWEEN PROPOSED VESC REGULATION AND FMVSS 115

FMVSS 115 and the proposed VESC regulation apply to the same class of vehicles, namely, passenger cars. See paragraph 2, Scope, of proposed VESC regulation.

The attached yellow pages from the VESC proposal deal with the passenger car regulations. The pink pages deal with a proposal for non-motive power recreational vehicles which is included for information only.

Paragraph 6 of the proposed VESC regulation sets forth the basic requirements. These require the VIN to contain in sequence exactly two digits called the Make Code Field, five or fewer digits called the Identifier Field, and exactly eight digits called the Indicator Section.

FMVSS 115 does not expressly address the make-up of the vehicle identification number. However, it is GM's understanding that FMVSS 115 is intended by the NHTSA to be a comprehensive, uniform, and exclusive standard covering all aspects of vehicle identification numbering. As such, the absence of an express requirement concerning the make-up of the vehicle identification number does not permit a State to impose such a requirement. This understanding is supported by your letter of November 8, 1973 to Mr. W. Pudinski of the Department of California Highway Patrol concerning FMVSS 108. See Attachment. In that letter you stated:

The implication of the California opinion is that any mode of design or performance that is not expressly dealt with in the Federal standard is open to regulation by

the States. Such a position is impractical, where the agency's intent is to have a comprehensive, uniform regulation in a given area . . . Congress clearly intended the NHTSA to establish a single set of uniform standards to which manufacturers must comply, and that intent would tend to be defeated by the position taken in the California opinion. Federal regulation has a negative as well as a positive aspect: in determining that there should be certain requirements in an area, we also are deciding against imposing others. The only way to effectuate such a decision is to declare, as we have done here, that our regulation is intended to be exclusive, and to describe as necessary its outer limits. [Emphasis added]

POTENTIAL INTERFERENCE WITH FUTURE NHTSA PLANS

If it is assumed for sake of argument only that preemption is not present, adoption of the VESC regulation in any of the VESC member jurisdictions could result in serious practical complications of future NHTSA plans.

In September 1975, the International Standards Organization (ISO) adopted two vehicle identification number standards: Vehicle Identification Numbering System 3779

and World Manufacturer Identifier Coding System 3780, which apply to all "road vehicles" including passenger cars. The text of the officially adopted standards will issue in January 1976. The European Economic Community (EEC) or Common Market Council, at its November 7, 1975 meeting, began considering these ISO standards for incorporation in the proposed EEC Council directive for statutory places and inscriptions for motor vehicles and trailers. Once the Common Market Council has incorporated the ISO standard, all Common Market countries must within 18 months "accept" the standard, i.e., recognize the standard as the exclusive or an alternative method of compliance with vehicle identification numbering requirements.

The ISO standard sets a maximum of 17 digits in the VIN. Although the standard can be met by fewer than 17 digits, one or more of the Common Market countries may adopt the standard in a way that requires no more and no less than 17 digits. Regardless of whether this happens, there is a direct conflict between the ISO standard which sets a maximum of 17 digits and the proposed VESC regulation which sets a maximum of 15 digits.

The ISO standard includes a World Manufacturer Identifier in the vehicle identification number which makes it possible to identify the country of origin as well as the manufacturer. This feature of the standard presumably will facilitate efforts to curtail international taffic in stolen cars. For that reason, it may be favored by the Interagency (DOT-Justice) Committee on Auto Theft Prevention. If curtailing international traffic in stolen cars prevents some car thefts from occurring in the United States, it may be that the NHTSA would also favor incorporating the ISO standard in FMVSS 115. If so, there will be a

head-on conflict with any VESC member jurisdiction that has adopted the VESC regulation because the VESC regulation requires two and only two digits in the Make Code Field, whereas the ISO standard requires three.

In the absence of Federal preemption in this matter, if any of the Common Market countries adopt the ISO standard in such a way that the 17 digits permitted by that standard are mandatory, adoption of the VESC standard in any of the VESC member-state jurisdications would require domestic manufacturers to have two separate VIN systems, one for vehicles sold in the United States and another for vehicles sold for export. This would be a confusing, wasteful and untenable situation.

GM respectfully requests NHTSA's opinion regarding FMVSS 115 in relation to the VESC regulation and the adoption thereof by any State or the District of Columbia. Your opinion should also be conveyed directly to the Vehicle Equipment Safety Commission either at the December 11 meeting or at the VESC headquarters in Washington.

Frank W. Allen -- Assistant General Counsel, GENERAL MOTORS

ENCS.

ID: nht76-5.45

DATE: 03/01/76

FROM: AUTHOR UNAVAILABLE; James B. Gregory; NHTSA

TO: Maryland Department of Transportation

COPYEE: J. CARSON

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of January 26, 1976, to Mr. Fred Vetter, expressing your concern about Federal Motor Vehicle Safety Standard (FMVSS) No. 115, Vehicle Identification Numbers (VINs).

The National Highway Traffic Safety Administration (NHTSA) is well aware of the importance of the VIN and its use in requirements for certification, defect investigation, recall campaigns, inspection and registration. We are also well aware of its importance to other users such as State administrations, law enforcement agencies, insurance companies and vehicle manufacturers. The VIN is crucial to the identification of stolen, junked and recycled vehicles.

It was NHTSA's intention with the initial issuance of FMVSS No. 115, to include within its scope all aspects of vehicle numbering relative to the vehicles to which it applied, and to leave any aspects for which there were no specific requirements to the discretion of the manufacturers until such requirements could be issued. This, of course, is the basis of our position that any state rules in this area must be the same as the Federal standards.

We agree, however, that the VIN may be more effective if it is standardized in structure, format, and information content. The NHTSA, through its personnel who are members of the Society of Automotive Engineers and International Standards Organization Committees, has been participating in the efforts to develop a worldwide VIN system for several years. The NHTSA plans to issue in the next few months an NPRM to amend FMVSS No. 115 that will specify requirements for a standardized, uniform identification numbering system for all motor vehicles on a worldwide basis. We welcome all help and recommendations in this action.

I sincerely hope that VESC will provide comments and recommendations to the docket as we proceed in our rulemaking action.

ID: nht76-5.46

DATE: 05/11/76

FROM: VETTER FOR JAMES B. GREGORY -- NHTSA

TO: Maryland Department of Transportation

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of March 4, 1976, concerning Federal Motor Vehicle Safety Standard No. 115, Vehicle Identification Number.

As I advised you on March 1, 1976, the National Highway Traffic Safety Administration (NHTSA) intends to issue within a few months a notice of proposed rulemaking relating to a standardized Vehicle Identification Number (VIN). At that time, it is our intent to contact directly a number of interested organizations, including the Vehicle Equipment Safety Commission, the International Standards Organization, and the American Association of Motor Vehicle Administrators, and seek comments regarding the proposal.

I believe this procedure will satisfy the requirement in section 103(f) of the National Traffic and Motor Vehicle Safety Act (the Act) for NHTSA to consult with the Commission in prescribing standards under the Act. Regarding this requirement, the conference committee stated:

In the administration of this provision it is expected that the Secretary will, to the extent consistent with the purposes of this act, inform the VESC and other agencies of proposed standards and amendments thereto and afford them a reasonable opportunity to study and comment thereon. (Emphasis added.) (H. Rep. No. 1919, 89th Cong., 2d Sess. 16 (1966))

Informing the VESC of proposed rulemaking, i.e., proposals issued by the agency, and providing an opportunity to comment, is the practice that the agency has been following and intends to continue following pursuant to section 103(f).

If a final rule relating to a VIN format is promulgated, we would expect all manufacturers to comply with the requirements of the amended standard and therefore do not anticipate litigation on our part. Consequently, should litigation ensue, as you suggest in your letter, it is my expectation that it would emanate from a manufacturer faced with differing requirements.

NHTSA has been considering the preemptive effect of Standard No. 115. As you know, the standard requires a VIN that is unique to a manufacturer during a ten-year period. It does not specify the length or content of the number. The question, therefore, becomes whether the standard was intended generally to cover all aspects of those numbers, and preempt any differing State rules. The guiding rule, as set forth by the U.S. Supreme Court in Florida Lime & Avacado Growers v. Paul, 373 U.S. 132, 141-142, (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines enunciated in cases as Thorne v. Housing Authority of Durham, 393 U.S. 268 (1969), and Chrysler v. Tofany, 419 F.2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that Standard No. 115 is intended to cover all aspects of VIN's relative to the vehicles to which the standard applies, and that any aspects for which there are no specific requirements were intended by this agency to be left to the discretion of the manufacturers. State regulations differing from the standard on this subject are found to "impair the federal superintendence of the field," within the meaning of the Florida Lime doctrine, and any such State regulation would be preempted under section 103(d), 15 U.S.C. 1392(d).

Should you have any other questions concerning this matter, please do not hesitate to contact me.

Sincerely,

ATTACH.

Maryland Department of Transportation

March 4, 1976

James B. Gregory -- Administrator, National Highway Traffic Safety Administration

Dear Dr. Gregory:

I appreciate your letter of March 1, 1976 advising me that you Administration intends to issue, within the next few months, an NPRM to amend the existing FMVSS No. 115 to standardize the vehicle identification numbering system for all vehicles on a worldwide basis.

I shall certainly advise my colleagues who serve with me on the Executive Committee of the Vehicle Equipment Safety Commission of the National Highway Traffic Safety Administration's intent in this regard. I presume, and it certainly will be my recommendation, that the Vehicle Equipment Safety Commission proceed with the promulgation of the Vehicle Identification Number Standard that was the subject of VESC hearings in Orlando, Florida in early December.

As I indicated in my correspondence to General Vetter, as soon as the VESC Standard is promulgated, and assuming it is, the Maryland Motor Vehicle Administration will promulgate rules and regulations adopting the Vehicle Equipment Safety Commission's standard as its own and require manufacturers to comply with the Maryland standard as a condition for the titling and registration of vehicles within this jurisdiction. This action on my part naturally assumes that the pre-emption provision does not apply in this matter and that the National Highway Traffic Safety Administration has not complied with the Congressional mandate that it consult with the Vehicle Equipment Safety Commission in the promulgation of equipment standards.

I presume, on the basis of your correspondence, that I can anticipate litigation in this matter and I have instructed counsel to prepare for this contingency.

With kindest regards, I am

Sincerely,

EJNER J. JOHNSON -- Administrator

CC: Joseph P. Murphy;

George O. Stevens;

Robert R. Harrison